WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) as soon as feasible, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2024 11 06 COURT FILE No.: 23-48120329 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

C.N.

Before: Justice C. Faria

Heard on: August 16, October 2, 2024 Reasons for Sentence: November 6, 2024

Counsel: Emma Haydon..................................................................................... counsel for the Crown Alan Sobcuff........................................................................... counsel for the accused C.N.

Faria J.:

I. Introduction

[1] On May 7, 2024, I found CN guilty of three counts of sexual interference and one count of invitation to sexual touching after a trial. [1] On August 16, 2024, CN pled guilty to failing to comply with a release order. He is now before me for sentencing on all charges. These are my reasons for sentence.

II. Facts

[2] The detailed facts as I found them are in my reasons for judgment and I will only summarize them here.

[3] DT was 8 years old when she came home after school one day and went to her mom’s bed for a nap. She thought no one was home. CN, her half brother, who was 18 years old at the time, came up the stairs and lay on the bed with her while she slept. He pulled one of her legs from her blue tights, touched her chest, her stomach, her back and her legs with his hands. He was interrupted by a friend of his who came up the stairs, at which point CN pretended to watch television (count 2).

[4] When DT was almost 9 years old, she was playing a game with her two older brothers, her older sister and CN, who was 19 years old at the time. The game involved 4 of them on the bed under covers while the 5th person entered the room to pull the covers off one of them. CN was lying on the bed by the wall, behind DT, under a blanket only the two shared. During the game, he tried to pull her pants down repeatedly. She pulled them back up. He pulled her close and told her to stop moving. She told him to stop it. He continued to grind his hard penis into her back while playing the game (count 4).

[5] DT was 10 years old when she was in the upstairs bathroom of the home. Her mother and siblings were on the main floor. CN, who was 20 years old at the time, came into the washroom. Her shorts or pants were halfway down, but her underwear was up. CN pulled her underwear down, bent her over, and while she stood facing the window, he stood behind her and put his penis a “tiny bit” into her vagina. CN told her to be quiet. She went to her mother’s bedroom and self-harmed when it was over (count 7).

[6] When DT was 9 or 10 years old, she was in her mother’s bedroom with her mother and her siblings watching Christmas movies. Home Alone, Lost in New York, to be specific. She went to take a break in her brother’s room to watch a different show when CN, who was 19 or 20 years old at the time, came into the room. She was lying on the bed when he said “Let’s do it quickly. Nobody’s here.” He grabbed her and she pushed him off. He tried again. She pushed him again. CN was touching her thighs while he tried to persuade her to engage in sexual activity (count 10).

[7] On April 20, 2022, CN was arrested for the above-described offences and released on an Undertaking with the condition that he does not attend the address where DT and her family lived. On April 21, 2022, the next day, CN attended the address.

III. Circumstances of CN

[8] CN just turned 29 years old. He has no criminal record. He sexually violated DT when he was between the ages of 18 and 20.

[9] Most of the information about his life prior to the offences was provided via his self-reporting to the author of a Pre-Sentence Report (PSR). This information is at times inconsistent, vague, or disturbingly detailed. Almost none of it is verified by collateral sources.

[10] The information about CN’s life after the offences, particularly his mental health, is provided by counsel via letters from various professionals. This information is also inconsistent.

[11] CN is the only child of his parents’ union, and the oldest of 9 half-siblings. He stated his parents separated before he was a year old, and he was with the Children’s Aid Society (CAS) until he returned to his father at the age of 3. He claimed he recalls seeing violence between his parents when that young.

[12] He was raised by his father and stepmother whom he reported verbally and physically abused him between the ages of 10 and 16. CN stated he struggled in school. He was bullied. He believes he has an undiagnosed learning disability but was able to graduate from high school. He stated his father was an alcoholic who “left him to the wind” at age 18 when he moved into his mother’s home. He has no relationship with his father, stepmother, or his siblings on that side.

[13] The offences started when CN moved in with his mother, his stepfather, DT and her 3 siblings when he was 18 years old. He lived with the family until he was 25. He is not close with those siblings either because of these offences.

[14] CN used cannabis regularly since the age of 11, started drinking at the age of 19 and states his mother enabled him to drink while he lived with her. He used ecstasy, cocaine, and “lean” [2] at the time.

[15] Regarding the offences, CN reported feeling close to DT, who is 10 years younger, as they played games together and “would hang out”. He “aimed to spoil” her. He said he has “no recollection” of the offences and feels “falsely accused”. Then he said he was “incredibly sorry” and that he “should have protected” DT. Finally, CN told the PSR author that he “would not accept full responsibility” but “would not refute” the offences occurred because his substance use caused memory loss.

[16] CN said he has had 5 serious relationships since he was 20 years old and has tried to become a father, but his partners have had multiple miscarriages and an abortion. He claims they all misled him. He is currently involved with a new partner who attended court and provided a letter of support. I was informed today they are now married.

[17] The overall tenor of the PSR is troubling. CN asserts recollections for the first time of very early memories of very serious infant sexual abuse allegedly perpetrated by his mother and child sexual abuse by a babysitter.

[18] He is unclear and inconsistent about the period during which he was sexually molesting DT. For instance, CN was unclear about when exactly he went to school, when he was working, and when he was doing both. He was unclear about how he was simultaneously so heavily into substance use that it caused him memory loss, but was also working, going to school, and being financially abused by his mother. He was inconsistent about whether he lost his job because of a workplace injury in 2022, or because he became homeless after his arrest. The evidence of LT, who was older than DT at the time, which I accepted at trial, was that CN was disruptive, drinking, and not financially contributing to the household during the period of offending.

[19] I do accept CN did not have a supportive childhood in his father’s home and was mistreated. I accept he used substances during his teen years and while he lived with his mother during the years he was offending. However he lost his job and became homeless, I accept he did become homeless. I accept he has now found housing and is on the Ontario Disability Support Program (ODSP).

[20] Of significance is that during the period of offending there is no indication that CN had any mental health conditions or diagnosis. He did not report any to the PSR author, or to any medical professional, but for one line where he stated that he had been hearing “voices” back in 2022. This claim or symptom was not followed up nor referred to by any medical or community professional in any of the letters submitted for consideration.

[21] It is clear that after CN was arrested in April 2022 his life took a downward spiral.

[22] In July 2022, he was hospitalized for a drug induced psychosis. Since then, he has been under psychiatric care. He is currently taking an anti-psychotic injection once a month, and a daily anti-depressant.

[23] The medical and community letters filed are disconcertingly inconsistent.

[24] The drug-induced psychosis of July 15, 2022, led to a CAMH admission until August 2, 2022. He presented as psychotic because of crystal methamphetamine use. He denied “any noteworthy traumas” at the time, and reported the use of cannabis, molly, cocaine, street-sourced Xanax, psychedelic mushrooms, and crystal meth, some of it laced with fentanyl.

[25] CN came under the care of Dr. Kelsey Lawson in February 2023 of the Inner-City Family Health Team.

[26] There are inconsistencies on exactly what it is that CN suffers from. For instance, Dr. Lawson names 5 diagnoses, while Dr. Tyrone Turner who saw him once names 6. Tsering Palmo of the Street Survivors Program writes CN has schizophrenia, but no medical professional says he does. Mr. Palmo stated CN has abstained from substance use for “over 3 years” when there is evidence CN experienced substance-induced psychosis in July 2022. Krysten Howat, a social worker erroneously diagnosed CN with depression. I received a new letter from Dr. Lawson today that does not name all the same diagnoses as the other medical professionals.

[27] I accept that CN has developed mental health conditions since the commission of the offences, is now on medication, consults regularly with medical professionals and is supported in the community by social organizations, his new wife, and his friends.

IV. Victim Impact Statement

[28] DT told the court these offences made her feel “worthless”, “unloved” and “like ending her life”. DT recognized CN hurt not only her, but their entire family, and specifically referred to their mother. She stated, “I love you but hate you at the same time.” She recognized CN struggles with his mental health and asks God to bless CN and guide him through the rest of his life.

V. The Position of the Parties

[29] The Crown recommends a total sentence of 7.5 years for the sexual offences, proposing 4 years for the most serious sexual interference offence and 3.5 years consecutive for the other offences concurrently. She recommends several ancillary orders as well. The Crown emphasizes the principles of denunciation, deterrence and enumerates several aggravating factors to support her position with supporting case law.

[30] The Defence recommends a sentence of 12 to 18 months in jail for the sexual offences apportioning either 6 months or 3 months to each offence consecutively or concurrently to achieve that result. He recognizes that denunciation and deterrence are the guiding principles but emphasizes consideration for CN’s personal history and current circumstances to support his more lenient position. He took no issue with the ancillary orders but for specific terms of the s.161 Order.

[31] The parties jointly submit the sentence for the breach of a release order should be 20 days jail concurrent with the sentence for the sexual offences.

VI. Legal Principles

A. Criminal Code

[32] The Criminal Code provides the purpose of sentencing in s. 718. Sentencing objectives are outlined in subsections (a) to (f):

• denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.
• deter the offender and other persons from committing offences.
• separate offenders from society, where necessary.
• assist in rehabilitating offenders.
• promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[33] Fundamentally, every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, s. 718.1.

[34] Section 718.01 indicates that a sentence for an offence that involves the abuse of a person under 18 shall give primary consideration to the denunciation and deterrence of such conduct.

[35] Section 718.04 directs that when a court imposes a sentence for an offence that involves the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence for that conduct ( emphasis added ).

[36] Similar offenders in similar circumstances committing similar offences should receive similar sentences, s. 718.2(b) reflects the principle of parity.

[37] When consecutive sentences are imposed, the combined sentence should not be unduly long or harsh and s. 718.2 (c) reflects this principle of totality.

[38] When determining a fit sentence, relevant aggravating or mitigating circumstances relating to the offence, or the offender must be considered.

[39] In this case the aggravating considerations in s. 718.2(a)(ii.1), s. 718.2(a)(iii) and s. 718.2(1)(iii.1) all apply, namely that DT was under 18 years of age, CN abused a position of trust or authority, and that the offence had a significant impact on the victim.

B. Caselaw

[40] In 2020, the Supreme Court of Canada set out an overarching framework reflecting a principled new approach to sentencing regarding sexual offences against children in the case of R. v. Friesen, 2020 SCC 9.

[41] The Supreme Court, in a unanimous decision, re-focused sentencing judges to a growing appreciation and understanding of the breath, depth and longevity of the harm sexual violence causes to victims, families, and the community (at para. 5).

[42] The Court articulated its role in setting a new direction. It stated at para. 35:

“Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, [1999] 2 S.C.R. 290, at para. 239). When a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence.”

[43] Though the Court recognized that criminal justice responses alone cannot solve the problem of sexual violence against children, it stated:

“Criminal law in general, and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament’s sentencing initiatives their full effect.” (at para. 45)

[44] The Court went on to consider the sentencing principles for sexual offences against children at para. 43:

“Sentencing is one of the most important and “most delicate stages of the criminal justice process” (Lacasse, at para. 1). It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence (C. L. M. Boyle, Sexual Assault (1984), at p. 171). It is important for this Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall, “Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216 , at p. 219). To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage (R. P. Nadin-Davis, “Making a Silk Purse? Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28 , at p. 46). This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large (see Lacasse, at para. 3).

[45] In Friesen, the Court then recognizes a broader understanding of harm in these cases and points out:

• Sentences for sexual offences against children must correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. (paras. 5, 107)
• Contemporary understandings as to the harmfulness and wrongfulness of sexual offences against children impacts a sentencing court’s proportionality assessment of both the gravity of the offence and moral culpability of the offender. (paras. 5, 30, 75)
• When determining the gravity of the offence, Courts must impose sentences that recognize and give effect to (1) the inherent wrongfulness of these offences, (2) the actual harm that children suffer, and (3) the potential harm to children that flows from these offences. (para. 76)

[46] At paragraphs 121 to 154 the Court provided guidance on the factors to be taken into consideration when determining a fit sentence for sexual offences against children. Almost all of them apply to this case.

• The age of the victim.
• Abuse of trust and/or authority.
• Duration and frequency of the offences.
• The degree of physical interference.
• The likelihood to re-offend.

[47] Incarceration is one our society’s most harsh sanctions, and the Court stated:

“The message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim…” (at para. 114).

VII. Analysis

A. Aggravating Factors

[48] Sexual interference and Invitation to sexual touching are serious offences by their very nature. In this case, there are at least 10 aggravating factors to consider. Some statutorily so, and others deriving from the specific circumstances of the offences.

i. DT’s age

[49] DT was young, quite young. She was only 8 years old when CN began to sexually violate her, and it went on until she was at least 10 years old. At that age, the meaning of what was being done to her, and her ability to understand and appreciate it, was developmentally well beyond her years.

ii. Abuse of trust and authority

[50] CN abused both DT’s trust, and his authority over her. By virtue of being DT’s older brother, the familial relationship of living in the same home and sharing the same mother engendered trust. Given the 10-year age difference, CN was also an adult in the home, particularly after DT’s father moved out of the home, and DT’s mother was not at home. In those circumstances, he as the adult older brother was in a position of authority - an authority he abused.

iii. Degree of physical interference

[51] CN perpetuated a high degree of interference with DT’s physical integrity. He partially unclothed her when she was sleeping. He rubbed his erect penis up against her back and buttocks as he tried to pull down her pants. There were multiple points of physical contact: her legs, her stomach, her chest, her back, her thighs, and her buttocks during three of the four offences.

[52] The fourth offence, the penile penetration of DT’s vagina in the bathroom was the most physically invasive and severe of all.

iv. Duration and frequency of the offences

[53] Some offences were longer in duration than others, for instance the penetration was short. The invitation to sexual touching was also relatively short. The sexual interference during the game went on for some time, while the undressing and touching while DT was on her mother’s bed took longer.

[54] In my view, the duration of each individual offence does not necessarily corelate to the harm caused. The seconds of penetration can cause more injury than the many minutes of penile grinding during the game the children were playing. The shorter interaction of CN’s sexual invitation could be more damaging to DT than when CN removed her blue tights and touched her.

[55] There is no evidence, and perhaps no way to know the entirety of the harm caused by virtue of the duration of any of the offences. Each offence lasted long enough to cause severe harm.

[56] The four offences also occurred over a period of two years. For two years, DT never knew when CN would exercise power and control over her body and violate her. Two years is a long time. CN’s conduct was also not a momentary lapse of judgment, or a momentary unregulated impulse. On two occasions, he followed her, once into her brother’s bedroom to invite her to be sexual with him, and a second time when he entered the bathroom to penetrate her.

v. Location and circumstances of the offences

[57] All four offences were perpetuated in DT’s home, where, more than anywhere else, she would be entitled to expect safety. CN’s offences ensured that home was where danger lived.

[58] The most private of spaces in a home, the bathroom, was where DT was violated via penile penetration.

[59] Not only was DT not safe in her home when she was alone, or in the bathroom, she was also not safe in the presence of her siblings either. CN violated DT when 3 of her siblings were in the same room, playing the same game at the same time. CN’s offending was brazen.

[60] In addition, one of the offences began when DT was sleeping which increased her vulnerability.

vi. Persistence

[61] During two of the offences, DT fought back. During the game when CN tried to pull her pants down, she pulled them back up. When he told her to stop moving, she did not. When he rubbed up against her, she told him to stop. CN was undeterred and persisted.

[62] When CN followed DT into another room and invited her to engage in sexual activity, DT tried to reason with him and told him the rest of the family was close by. He was undeterred and continued to touch her. She pushed him away.

[63] In both cases, CN persisted in the face of DT’s resistance.

vii. Grooming

[64] CN confirmed DT’s evidence that he treated DT differently, and better than the other siblings. In his words, he “aimed to spoil her”. Her perception that he was sometimes nice to her by buying her meals for instance is accurate. His conduct had a grooming tone to it.

viii. Impact on the victim

[65] Of note is the appreciation that the entirety of the harm caused to children by sexual violence is not actually known at the time of sentence. As a result, I must consider forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize in childhood or adulthood. Courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm (Friesen at paras. 79-86).

[66] In a very short victim impact statement, DT was able to articulate some of the complexity of the harm done. The offences made her feel worthless and unloved. CN caused DT’s painful distorted sense of self as she entered puberty.

[67] DT demonstrated the immediate experience of the psychological pain CN caused at the age of 10 when she went to her mother’s bedroom after the penile penetration and self-harmed. That impact is severe, and in my view, likely long-lasting.

[68] Additional psychological harm was demonstrated years later, when DT’s sister asked her at the age of 16 if she was a virgin, DT responded she did not know and broke into tears. CN’s violations of her body as a child distorted DT’s adolescent ability to know and understand her own lived sexual experience.

[69] The impact of CN’s sexual violation of DT was further exacerbated by their familial relationship. It caused conflicting feelings. DT identified that she both loves and hates CN.

[70] DT also identified the harmful impact CN’s offences has had on the family, particularly their mother who is now the parent of both the victim and the perpetrator. The knowledge of CN’s offences will now always play some role in the familial relationships and dynamic of this entire family.

ix. Risk to re-offend

[71] There is no evidence of CN’s risk to re-offend as he was not assessed by any medical professional. This factor is therefore of minimal weight. However, CN’s limited and conflicting insight into what has occurred is a relevant consideration that exposes a concern he may re-offend.

[72] On the one hand CN does not “refute the charges”, he is “sorry”, and he should have “protected” DT which in some way recognizes he may have hurt his little sister. On the other hand, CN does not take responsibility and feels wrongly accused. CN seems to blame this situation on his drug use.

[73] CN is obtaining professional help to deal with both his drug addictions and his mental health. However, given the connection, by his own admission, between his drug use and the possibility of his offending in his own mind, there is no indication he is intentionally addressing this risk to reoffend if he abuses drugs again. To be sure, CN’s struggle with accountability for the offences is not an aggravating factor. It is his lack of attention to his self-identified connection between substance use and sexual offending, in and of itself, that leads to some concern.

x. Brazen breach

[74] CN was released almost immediately after his arrest on his own undertaking to follow conditions. The condition not to attend the home of a complainant is a simple, straight forward, and essential condition to ensure the separation of a defendant from a complainant to safeguard the safety of the complainant and the integrity of the criminal process. CN violated it almost immediately when he went to DT’s home the day after his release. It was a brazen breach of an essential release condition.

B. Mitigating Factors

[75] CN has no criminal record, given the significant challenges he has faced, this is of significance.

[76] CN had a difficult childhood and adolescence in an unsupportive home where he was mistreated. He had academic challenges. He has a learning disability. He experienced bullying. This is a challenging start to life, yet he was able to graduate from high school. This demonstrates a telling amount of motivation and resilience that is to his credit.

[77] CN has been repeatedly employed. Again, given his difficulties learning, his substance use and abuse, his ability to find work repeatedly, demonstrates tenacity and effort.

[78] CN now has a wife and friends who have attended court to show their support and filed letters with the court articulating he is warm, supportive, and loving.

[79] It is also relevant that CN is seeking and taking treatment for his mental health and has done so consistently with numerous medical professionals. He is under a plan of care and working with community organizations. He is now properly housed and receiving social assistance which has stabilized him.

C. Balancing

[80] The balancing of the applicable principles, the personal circumstances and the jurisprudence illustrates the complex task of sentencing referred to as a “highly individualized exercise that goes beyond a purely mathematical calculation” described in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para. 58.

[81] I have reviewed the cases the Crown relied on in support of her position on the issue of parity. In R. v. N.K. 2024 ONSC 2761, R. v. S.S. 2024 ONSC 3568, R. v. A.S. 2023 ONSC 983, and R. v. D.G., 2018 ONCJ 770, each offender was sentenced to 7 years in the penitentiary. In R. v. G.B. 2023 ONSC 5081, R. v. J.H. 2022 ONCJ 271 and R. v. G.R. 2020 O.J. No. 5263 (S.C.J), each offender was sentenced to 4 years and 5.5 years.

[82] Although in each case the offender had no criminal record, like CN, they were all older than CN Each case had young victims ranging in age from 5 years old to about 12 years old. Some offences were repetitive while others were more isolated. In each case, the devastation on the victim was long lasting. These cases were helpful.

[83] I have also reviewed the cases relied on by the Defence, namely: R. v. Green, ONSC 3786, R. v. T.A. 2022 ONCJ 528, and R. v. R.L. 2021 ONCJ 688. The offenders in these cases were sentenced to between 18 months to two years less a day in jail. However, these cases were not as helpful. These offences were less intrusive than the ones at bar, fewer in number or occurred over shorter periods of time.

[84] In my view, the number of offences, the long period over which they were perpetuated, the breadth and depth of harm they caused to DT’s psychological health and development at the time, now and in the future, as well as the ripple and ongoing effect of the impact of the offences on her relationship to her family and her sense of self, and most significantly, the seriousness of the offences themselves requires a sanction that reflects the wrongfulness of these offences in the eyes of our community.

[85] In addition to the severity of the offences, CN’s responsibility is high. To be clear, CN was not suffering any mental health conditions when he was offending which would diminish his moral culpability.

[86] I am mindful of CN’s difficult childhood, and his substance use at the time of the offences. I am also mindful that he was a very young man when he committed these offences, but these mitigating considerations are far outweighed by the aggravating factors.

[87] As stated in Friesen, denunciation and deterrence are the paramount factors, and in this case, given the numerous aggravating factors, the principle of proportionality attracts a significant penitentiary sentence that reflects the grave wrongfulness of the sexual violations CN perpetuated on his little sister.

VIII. Sentence

[88] The sentence is as follows:

• Count 7: Sexual interference – penile penetration – 7.5 years in the penitentiary.
• Count 2 Sexual interference – undressing and sexual touching – 4.5 years concurrent to count 7.
• Count 4: Sexual interference - while playing a game – 3 years concurrent to count 7.
• Count 10: Invitation to sexual touching – 2 years concurrent to count 7.
• Failing to Comply with an Undertaking – 20 days jail minus 1 day pre-sentence custody, enhanced to 2 days, concurrent to count 7.

[89] I will also make the following orders:

i. A s. 487.04 DNA order. ii. A s. 109 weapons prohibition for life. iii. A s. 743.1 order that CN have no contact with DT, LT and SAM while serving sentence. iv. A s. 490.013 (1) (a) SOIRA order for life.

[90] After having heard submissions from both parties, I order a s. 161 Order that CN is prohibited from:

(a) attending a public park or area where persons under the age of 16 years are present unless in the presence of an adult over 18 years old.

( a.1 ) being within one kilometre, of any dwelling-house, where DT ordinarily resides, works, goes to school, volunteers or is known by CN to be.

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) being alone in private in the presence of a person under the age of 16 unless in the presence of an adult over the age of 18.

[91] I will waive the victim fine surcharge as CN is on ODSP and the fine would cause him undue hardship.

[92] This has been a challenging case for all involved. I thank both counsel for their helpful and comprehensive submissions.

Released: November 6, 2024 Signed: Justice Cidalia C. G. Faria

[1] R. v. C.N. 2024 ONCJ 274.

[2] “Lean” appears to be a polysubstance drink containing an opioid.